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I 


!  SUPPLY,  CITY  OF  SA^  FRAN 


FOB  LAKE  ELEANOR  AND  HETCH  HETCHY  VALLEY 
RESERVOIR   SITES.    ACT   OF   FEBRUARY    15.    1901. 

DEPARTMENT  OF  THE  INTERIOR, 

March  1, 1913. 
'or  <tii</  lunfrti  ftf  supervisors  of  th<   <-/ti/  <fn<!  county  of  San 

".  ( 'alifornia; 

K.MKN  :   In  the  matter  of  the  permit  issued  on  May  11,  1908. 
[on.  James  K.  (iartield.  Secretary  of  the  Interior,  to  the  city 
•raiirisvo.  for  certain  reservoir  and  other  rights  of  way  within 
»mite   National   Park,  upon  what   are  known   as  the   Lake 
land  I  letch  Iletchy  Valley  reservoir  sites,  there  are  two  dis- 
•eediiiii-   pending  before  the  Department  of  the  Interior. 
rule  issued  on  February  25.  11)10,  by  the  IIo"    i>.  A.  Bal- 
Tetary  of  the  Interior,  to  the  mayor  and         .er  visors  of 
nid  county  <>f  San  Francisco,  to  show  why  the  Hetch  Hetchy 
'servoir  site  should  not  be  eliminated  from  said  permit.     The 
application  of  the  city  and  county  of  San  Francisco  for 
nation  of  the  said  permit,  so  as  to  allow  the  immediate  use 
[etch  I  Tetchy  Valley  for  reservoir  purposes, 
^osemite  National  Park  wTas  originally  created  as  a  forest, 
[on  (not  as  a  national  park)  by  the  act  of  Congress  of  Octo- 
(90  (2(>  Stats.,  050).  which  provided: 

•vutioii  shall  be  under  the  exclusive  control  of  the  Secretary  of  the 
'•hose  duty  ir  shall  be,  as  soon  as  practicable,  to  make  and  publish  such 
regulations  as  he  may  deem  necessary  or  proper  for  the  care  and 
mt  of  the  same.  Such  regulations  shall  provide  for  the  preservation 
try  of  all  limber,  mineral  deposits,  natural  curiosities,  or  wonders 
id  reservation,  and  their  retention  in  their  natural  condition.  *  *  *"* 

|w  of  the  fact  that  the  provisions  of  law  and  the  rules  and 
adopted  by  the  Secretary  were,  in  substance,  the  same  as 
>vided  for  the  Sequoia  National  Park,  and  because  the  reser- 
irrounded  the  tract  of  land  known  as  Yosemite  Valley,  which 
granted  to  the  State  of  California  for  a  public  park  by 
!ongre,ss  approved  June  30,  18(54.  Secretary  John  W.  Noble, 
inual  report  for  1800.  called  the  reservation  the  "  Yosemite 
Park."  and  in  subsequent  acts  of  Congress  this  title  appears 
been  used  without  being  specifically  adopted.     In  1905  the 


493712 


2  3 


WATER  SUPPLY,  CITY  OF  SAN 


APPLICATION  FOR  LAKE  ELEANOR  AND  HETCH  HETCHY  VALLEY 
RESERVOIR   SITES,    ACT   OF   FEBRUARY    15,    1901. 

DEPARTMENT  OF  THE  INTERIOR, 

March  1, 1913. 
Tlie  mayor  and  l><><ir<l  »i  supervisors  of  the  city  and  county  of  San 

Francisco*  ( 'olifomia. 

GENTLEMEN:  In  the  matter  of  the  permit  issued  on  May  11,  1908. 
by  the  Hon.  James  K.  Garfield.  Secretary  of  the  Interior,  to  the  city 
of  San  Francisco,  for  certain  reservoir  and  other  rights  of  way  within 
the  Yosemite  National  Park,  upon  what  are  known  as  the  Lake 
Eleanor  and  Iletcli  Iletchy  Valley  reservoir  sites,  there  are  two  dis- 
tinct proceedings  pending  before  the  Department  of  the  Interior. 
One  is  the  rule  issued  on  February  25,  1910,  by  the  Ho^  E.  A.  Bal- 
linger.  Secretary  of  the  Interior,  to  the  mayor  and  ^ervisors  of 
the  city  and  county  of  San  Francisco,  to  show  why  the  Hetch  Hetchy 
Valley  reservoir  site  should  not  be  eliminated  from  said  permit.  The 
other  is  the  application  of  the  city  and  county  of  San  Francisco  for 
a  modification  of  the  said  permit,  so  as  to  allow  the  immediate  use 
of  the  Hetch  Hetchy  Valley  for  reservoir  purposes. 

The  Yosemite  National  Park  was  originally  created  as  a  forest, 
reservation  (not  as  a  national  park)  by  the  act  of  Congress  of  Octo- 
ber 1,  1890  (20  Stats.,  650),  which  provided: 

said  reservation  shall  l»e  under  the  exclusive  control  of  the  Secretary  of  the 
Interior,  whose  duty  it  shall  be,  as  soon  as  practicable,  to  make  and  publish  such 
rules  and  regulations  as  lie  may  deem  necessary  or  proper  for  the  care  and 
management  of  the  same.  Such  regulations  shall  provide  for  the  preservation 
from  injury  of  all  timber,  mineral  deposits,  natural  curiosities,  or  wonders 
within  said  reservation,  and  their  retention  in  their  natural  condition.  *  *  * 

In  view  of  the  fact  that  the  provisions  of  law  and  the  rules  and 
regulations  adopted  by  the  Secretary  were,  in  substance,  the  same  as 
those  provided  for  the  Sequoia  National  Park,  and  because  the  reser- 
vation surrounded  the  tract  of  land  known  as  Yosemite  Valley,  which 
had  been  granted  to  the  State  of  California  for  a  public  park  by 
act  of  Congress  approved  June  30,  1864,  Secretary  John  W.  Noble, 
in  his  annual  report  for  1890,  called  the  reservation  the  "  Yosemite 
National  Park."  and  in  subsequent  acts  of  Congress  this  title  appears 
to  have  been  used  without  being  specifically  adopted.  In  1905  the 


493712 


CITY  OF   SAN   FRANCISCO. 


States,  of  California  receded^the  Yosemite  Valley  to  the  United  States 
upea  the  cV^d'itim.tet  it.  'should  be  held  and  maintained  as  a  na- 
tional park,  and  on  June  11,  1906,  this  recession  was  accepted  by 
joint  resolution  of  Congress,  which  specifically  referred  to  the  act 
of  October  1,  1890,  and  established  certain  boundaries  between  the 
"  Sierra  Forest  Reserve  "  and  the  "  Yosemite  National  Park." 

Within  the  exterior  boundaries  of  the  park  there  was  a  consider- 
able number  of  tracts  of  land  the  title  to  which  had  passed  from  the 
Government  to  private  parties.  These  private  lands  included  a 
large  part  of  the  shores  of  Lake  Eleanor  and  the  greater  portion  of 
the  floor  of  the  Hetch  Hetchy  Valley,  as  well  as  other  tracts  of  con- 
siderable area  located  in  other  portions  of  the  park.  The  Depart- 
ment of  the  Interior  and  many  citizens  and  groups  or  associations  of 
citizens  have  repeatedly  urged  upon  Congress  that  these  private 
holdings  should  be  purchased  by  the  Government,  but  Congress  has 
refused  to  appropriate  money  for  this  purpose.  The  private  lands 
at  Lake  Eleanor  and  Hetch  Hetchy  have  been  purchased  by  the  city 
of  San  Francisco,  which  has  also  acquired  other  valuable  lands  and 
rights  within  the  exterior  boundaries  of  the  park.  Its  holdings, 
however,  do  not  include  the  dam  site.  On  February  15,  1901,  Con- 
gress passed  an  act  (31  Stats.,  790)  entitled  "An  act  relating  to  rights 
of  way  through  certain  parks,  reservations,  and  other  public  lands." 
That  act  reads  as  follows  : 

Be  it  enacted  ~by  the  Senate  and  House  of  Representatives  of  tlie  United 
States  of  America  in  Congress  assembled,  That  the  Secretary  of  the  Interior  be, 
and  hereby  is,  authorized  and  empowered,  under  general  regulations  to  be  fixed 
by  him,  to  permit  the  use  of  rights  of  way  through  the  public  lands,  forest  and 
other  reservations  of  the  United  States,  and  the  Yosemite,  Sequoia,  and  General 
Grant  National  Parks,  California,  for  electrical  plants,  poles,  and  lines  for  the 
generation  and  distribution  of  electrical  power,  and  for  telephone  and  telegraph 
purposes,  and  for  canals,  ditches,  pipes  and  pipe  lines,  flumes,  tunnels,  or  other 
water  conduits,  and  for  water  plants,  dams,  and  reservoirs  used  to  promote 
irrigation  or  mining  or  quarrying,  or  the  manufacturing  or  cutting  of  timber 
or  lumber,  or  the  supplying  of  water  for  domestic,  public,  or  any  other  beneficial 
uses  to  the  extent  of  the  ground  occupied  by  such  canals,  ditches,  flumes,  tun- 
nels, reservoirs,  or  other  water  conduits  or  water  plants,  or  electrical  or  other 
works  permitted  hereunder,  and  not  to  exceed  fifty  feet  on  each  side  of  the 
marginal  limits  thereof,  or  not  to  exceed  fifty  feet  on  .each  side  of  the  center 
line  of  such  pipes  and  pipe  lines,  electrical,  telegraph  and  telephone  lines  and 
poles,  by  any  citizen,  association,  or  corporation  of  the  United  States,  where  it 
is  intended  by  such  to  exercise  the  use  permitted  hereuuder  or  any  one  or  more 
of  the  purposes  herein  named  :  Provided,  That  such  permits  shall  be  allowed 
within  or  through  any  of  the  said  parks  or  any  forest,  military,  Indian,  or  other 
reservation  only  upon  the  approval  of  the  chief  officer  of  the  department  under 
whose  supervision  such  park  or  reservation  falls  and  upon  a  finding  by  him  that 
.the  same  is  not  incompatible  with  the  public  interest:  Provided  furtlier.  That 
all  permits  given  hereunder  for  telegraph  and  telephone  purposes  shall  be  sub- 
ject to  the  provision  of  title  sixty-five  of  the  Revised  Statutes  of  the  United 
States,  and  amendments  thereto,  regulating  rights  of  way  for  telegraph  com- 


pauies  over  the  public  domain:  Ami  prorhlcd  further.  That  any  permission 
jriM.'ii  by  the  Secretary  of  the  Interior  under  Ihe  provisions  of  this  act  may  he 
revoked  hy  him  or  his  successor  in  his  discretion,  and  shall  not  be  held  to 
confer  any  right,  or  easement,  or  interest  in.  to.  or  over  any  public  land,  res- 
ervation, or  park. 

This  is  the  so-called  "  revocable  permit "  act,  under  which  rights 
of  way  for  electrical  plants,  transmission  lines,  canals,  ditches,  and 
reservoirs  are  permitted  through  the  public  lands  and  forest  reserva- 
tions  of  the  United  States.  The  only  national  parks  to  which  it 
applies  are  the  Yosemite,  Sequoia,  and  General  Grant  National  Parks, 
in  the  State  of  California.  The  act  was  passed  on  February  15,  1901. 
On  October  15,  1901,  the  city  of  S,an  Francisco,  through  the  Hon. 
James  I).  Phelan,  then  mayor,  filed  an  application  for  reservoir 
rights  of  way  at  Lake  Eleanor  and  Hetch  Hetchy.  After  considera- 
lion  of  this  application,  Hon.  E.  A.  Hitchcock,  then  Secretary  of  the 
Interior,  on  December  22,  1903,  refused  the  permit  on  the  principal 
ground  that  he  did  not  have  the  necessary  statutory  authority.  He 
discussed  the  existing  and  available  water  supplies  of  the  city  of  San 
Francisco,  and  upon  the  information  then  before  him,  held  that 
(here  were  other  adequate  sources  of  supply  available;  but  the  con- 
trolling consideration  for  his  refusal  of  the  permit  was  the  construc- 
tion placed  by  him  upon  the  two  acts  of  Congress  above  mentioned. 

The  city  continued  its  efforts  to  obtain  the  permit,  but  on  February 
5.  1905,  Secretary  Hitchcock  again  reached  the  conclusion  that  the 
permit  "  could  not  be  granted  without  further  legislation  by  Con- 
gress." The  Application  was  again  renewed  by  the  city  before  Sec- 
retary Hitchcock's  successor,  Hon.  James  R.  Garfield,  and  on  May 
1 1.  1908,  Secretary  Garfield  granted  the  permit  which  is  nowr  in  force. 
This  permit  provided  that  the  city  might  develop  the  Lake  Eleanor 
reservoir  site  and  that  if  this  site  when  developed  to  its  full  capacity 
should  not  prove  adequate  for  the  needs  of  the  city  the  Hetch  Hetchy 
Valley  could  then  be  used  as  a  reservoir.  The  permit  is  set  out  in 
full  in  the  report  of  the  Advisory  Board  of  Army  Engineers  made 
on  February  19,  1913.  and  contains  other  important  provisions,  which 
need  not  be  referred  to  at  this  time. 

In  October,  1909,  Hon.  R.  A.  Ballinger,  then  Secretary  of  the 
Interior,  instructed  the  Director  of  the  Geological  Survey  and  cer- 
tain engineers  of  the  Reclamation  Service  to  investigate  and  report 
ii[)(  11  the  sources  of  water  supply  involved  in  the  permit  and  upon 
the  necessity  for  the  retention  of  the  Hetch  Hetchy  Valley  within 
the  terms  thereof.  On  February  25,  1910,  in  view  of  the  report  made 
of  the  results  of  this  investigation,  especially  "  as  to  the  sufficiency 
of  the  Lake  Eleanor  reservoir  site  when  fully  developed,  and  in  view 
of  the  importance  of  the  public  interests  involved  in  this  matter 
and  the  Government's  obligation  in  connection  therewith,"  Secretary 


WATER   SUPPLY,    CITY   OF   SAN   FRANCISCO. 

Ballinger  required  the  city  and  county  of  San  Francisco  "  to  show 
why  the  Hetch  Hetchy  Valley  and  reservoir  site  should  not  be  elimi- 
nated from  said  permit." 

At  the  request  of  the  Secretary  of  the  Interior  ihe  War  Depart- 
ment, by  direction  of  the  President,  appointed  an  Advisory  Board  of 
three  Army  Engineers  to  assist  the  Secretary  of  the  Interior  in  pass- 
ing upon  the  matters  submitted  to  the  Interior  Department  under 
.the  order  to  showr  cause,  and  Congress  subsequently  appropriated 
$12,000  to  pay  the  expenses  of  this  Advisory  Board.  A  hearing  was 
held  on  May  25  and  26,  1910,  and  upon  application  of  the  city  a  post- 
ponement was  granted  until  June  15  1911,  for  the  purpose  of  enabling 
the  city  to  furnish  the  necessary  information  for  a  proper  determina- 
tion of  the  important  questions  involved,  and  the  city  undertook  to 
furnish  this  information  at  its  own  expense  and  with  due  diligence. 
The  Advisory  Board  of  Army  Engineers  Avas  also  authorized  to  pro- 
cure such  independent  data  and  information  as  it  deemed  proper. 
It  has  conducted  an  extensive  investigation  on  its  own  account  and 
has  made  personal  inspections  of  many  of  the  proposed  sources  of 
water  supply  and  reservoir  sites,  including  visits  to  the  Hetch  Hetchy 
and  Lake  Eleanor.  The  order  of  continuance  is  set  out  in  full  in  the 
report  .of  the  Advisory  Board. 

This  was  the  situation  when  I  became  Secretary  of  the  Interior  in 
March,  1911.  Shortly  thereafter  the  city  applied  for  a  continuance, 
which  was  granted  until  December  1,  1911.  Upon  a  further  applica- 
tion of  the  city  the  time  was  extended  until  March  1,  1912,  and  again 
until  June  10,  1912.  These  later  applications  were  all  granted  by  mo 
with  the  greatest  reluctance  and  only  after  pointing  out  to  the  repre- 
sentatives of  the  city  the  importance  of  an  early  hearing,  so  that  the 
many  difficult  and  intricate  questions  could  be  thoroughly  considered 
and  ample  time  might  be  available  for  procuring  such  additional 
information  and  permitting  such  additional  discussion  as  would  in 
all  probability  be  found  essential  as  a  result  of  the  formal  hearing. 
Nevertheless,  on  May  28,  1912,  the  city  again  presented  a  request  for 
a  further  extension  of  time  in  which  to  secure  and  present  its  evi- 
dence. It  was  demonstrated  that  the  city  would  not  be  able  to 
present  its  case  without  a  substantial  extension  of  time,  and  I  appre- 
ciate quite  fully  the  adverse  conditions  with  which  the  present  repre- 
sentatives of  the  city  have  had  to  contend  and  many  of  which  wore 
practically  unavoidable.  A  detailed  schedule  was  prepared  fixing 
various  dates  on  or  before  which  the  city  would  be  able  to  make 
documentary  showing  upon  the  different  matters  under  investigation, 
and  it  was  required  to  make  this  showing  in  accordance  with  this 
schedule.  Appropriate  periods  were  fixed  within  which  the  ob- 
ject ors  should  have  an  opportunity  to  examine  the  matters  presented 
by  the  city  and  to  answer  them  and  a  further  period  within  which 


WATER   SUPPLY,    CITY   OF   SAN    FRANCISCO.  5 

the  city  was  to  reply.  The  formal  hearing  was  set  for  November  '20, 
1912,  and  later  postponed  until  November  25,  1912.  In  September, 
1011,  I  personally  visited  Lake  Eleanor  and  Hetch  Hetchy. 

The  oral  hearing  before  me  began  on  November  25,  1912,  and  con- 
tinued until  and  including  November  30.  The  reports  and  other 
documents  filed  on  and  prior  to  this  hearing  included  thousands  of 
printed  or  typewritten  pages  with  financial  and  statistical  tables, 
diagrams,  and  maps.  They  are  enumerated  in  the  report  of  the 
Advisory  Board  of  Army  Engineers.  Nevertheless,  as  had  been  ap- 
parent, the  information  was  incomplete  in  important  particulars  and 
it  was  found  necessary  or  desirable  to  call  for  additional  reports  and 
.statements.  Dates  were  fixed  within  which  these  matters  were  to  be 
supplied,  but  it  was  not  until  the  middle  of  January,  1913,  that  the 
city  completed  its  showing,  including  a  draft  of  the  permit  which  it 
requested  the  department  to  issue  as  a  modification  of  the  permit 
issued  by  Secretary  Garfield.  The  modifications  proposed  were  of 
great  importance  and  included  a  particular  treatment  of  the  interests 
of  the  Turlock- Modesto  irrigation  district,  which  had  not  previously 
been  discussed.  On  February  1,  1913,  the  city  authorities  requested 
that  this  new  provision  be  further  modified.  To  these  modifications 
the  representatives  of  the  Turlock-Modesto  district  have  objected  and 
presented  a  substitute.  The  answer  of  the  city  to  the  proposed  sub- 
stitute was  not  received  until  February  15.  Meanwhile,  however,  the 
Advisory  Board  of  Army  Engineers  was  giving  to  the  various  en- 
gineering questions  submitted  to  it  such  consideration  as  was  prac- 
ticable  in  the  uncompleted  state  of  the  record.  The  board  was  not 
able  to  make  its  report  to  me  until  February  19,  1913.  Since  that 
date  the  pressure  of  official  business  inevitable  during  the  closing 
weeks  of  an  administration  has  prevented  me  from  giving  to  this 
report  and  to  the  entire  matter  to  which  it  relates  that  time  and 
consideration  which  the  nature  and  importance  of  the  questions  at 
issue  demand. 

If  it  were  clear  that  I  should  issue  to  the  city  of  San  Francisco  a 
permit  of  the  general  character  it  requests,  it  would  have  been  and 
would  now  be  absolutely  impossible  within  the  time  available  to  em- 
l')ody  the  details  of  such  a  permit  in  a  properly  considered  document. 
This  is  a  matter  of  the  greatest  regret  to  me  as  I  had  hoped  to  be  able 
at  least  to  draft  a  permit  embodying  the  provisions  which,  in  my 
judgment,  should  be  contained  in  any  permit  for  the  use  of  the 
Hetch  Hetchy  Valley  as  a  reservoir  site  by  the  city  of  San  Francisco 
and  the  communities  around  San  Francisco  Bay.  The  importance 
of  doing  this,  however,  is  much  reduced  by  the  fact  that  I  have 
reached  the  conclusion  that  a  permit  for  this  purpose  should  not  be 
issued  by  the  Secretary  of  the  Interior  under  the  existing  law.  This 
conclusion  is  not  based  at  all  upon  questions  of  detail  connected  with 


6  WATER    SUPPLY,    CITY   OF    SAX    FRANCISCO. 

the  permit,  but  is  based  upon  the  fact  that  the  only  statutory 
authority  under  which  such  a  permit  could  be  issued  is  the  act  of 
February  15,  1901. 

The  first  and  main  conclusion  reached  by  the  Advisory  Board  of 
Army  Engineers  is  as  follows : 

The  board  is  of  the  opinion  that  there  are  several  sources  of  water  supply 
that  could  be  obtained  and  used  by  the  city  of  San  Francisco  and  adjacent  com- 
munities to  supplement  the  near-by  supplies  as  the  necessity  develops.  From 
any  one  of  these  sources  the  water  is  sufficient  in  quantity  and  is,  or  can  be 
made,  suitable  in  quality,  while  the  engineering  difficulties  are  not  insurmount- 
able. The  determining  factor  is  principally  one  of  cost;  in  some  cases,  how- 
ever, such  as  the  Sacramento,  sentiment  must  be  taken  into  consideration. 

The  project  proposed  by  the  city  of  San  Francisco,  known  as  the  Hetch 
Hetchy  project,  is  about  $20,000,000  cheaper  than  any  other  feasible  project 
for  furnishing  an  adequate  supply.  The  only  exception  is  the  filtered  Sacra- 
mento project,  which  in  actual  cost  is  about  $30,000,000  greater  than  the  Hetch 
Hetchy  project,  but  by  discounting  to  1914  becomes  only  $13,000,000  greater. 

The  Hetch  Hetchy  project  has  the  additional  advantage  of  permitting  the 
development  of  a  greater  amount  of  water  power  than  any  other. 

I  do  not  believe  that  the  Secretary  of  the  Interior  should  grant, 
under  the  act  of  February  15,  1901,  a  permit  in  this  case  based  upon 
the  principal  determining  factor  of  the  difference  in  cost  between 
available  alternative  sources  of  water  supply,  whether  that  difference 
be  $13,000,000  or  $20,000,000,  or  even  more  than  $20,000.000.  If  the 
Secretary  were  to  do  this,  he  would,  in  a  certain  important  sense,  be 
placing  a  monetary  value  upon  the  preservation  of  the  Hetch  Hetchy 
Valley  in  its  present  natural  condition.  He  would  be  determining 
that  in  order  to  save  the  expenditure  of  a  certain  sum  of  money  by 
the  people  of  San  Francisco  the  people  of  the  whole  country  should 
consent  to  change  the  present  natural  condition  of  the  Hetch  Hetchy 
Valley.  It  may  well  be  that  such  consent  would  be  justified.  It 
depends  upon  the  effect  of  the  use  permitted  and  upon  the  amount 
of  money  saved,  as  well  as  upon  other  considerations.  Such  action, 
however,  should  not  be  taken  by  the  Secretary  without  a  clearer 
authorization  by  Congress  than  I  am  able  to  believe  was  consciously 
intended  when  the  act  of  1901  was  passed.  In  any  event,  such  action 
with  respect  to  so  important  a  feature  of  a  national  park  as  is  iho 
Hetch  Hetchy  Valley  would  constitute  a  precedent  which  should  be 
most  carefully  and  effectively  guarded  before  it  is  established. 

This  conclusion  is  not  based  upon  the  opinion  that  the  conversion 
of  the  Hetch  Hetchy  Valley  into  a  reservoir  or  lake  would  so  seri- 
ously mar  the  scenic  beauty  of  the  valley  as  is  contended  by  many  of 
the  objectors  to  the  city's  application.  I  have  been  convinced  that 
the  proposed  use  of  the  Hetch  Hetchy  as  a  reservoir  will  not  require 
undesirable  sanitary  restrictions  upon  the  use  of  its  waters!  KM  I 
by  the  public,  if  the  permit  contains  the  provisions  recommended  by 
the  Advisory  Board.  If  the  use  of  the  Hetch  Hetchy  Valley  was 


CITY   OF   SAN   FRANCISCO.  7 

clearly  necessary  for  the  city  of  San  Francisco  and  its  adjacent  com- 
munities, I  believe  that  such  change  in  its  condition  and  such  loss  or 
impairment  of  scenic  beauty  as  might  possibly  occur  would  be  amply 
justified  and  Avould  not  be  a  matter  of  such  serious  moment  as  to  be 
at  all  controlling.  It  is  indeed  an  open  question  about  which  real 
differences  of  disinterested  and  intelligent  opinion  exist  whether  the 
valley  would  not  be  as  beautiful  if  it  contained  the  lake  created  by 
the  dam  as  it  is  with  its  present  natural  floor.  Nevertheless,  the 
valley  should  be  retained  in  its  natural  condition  unless  ample  justi- 
fication exists  for  changing  it.  The  act  of  October  1,  1890,  creating 
the  reservation  which  is  now  the  Yosemite  National  Park,  provides 
"  for  the  preservation  from  injury  of  all  *  *  *  natural  curi- 
osities or  wonders  within  such  reservation  and  their  retention  in  their 
natural  condition,"  and  this  provision  should  be  followed  unless  there 
is  clearly  some  adequate  justification  for  a  different  course. 

I  am  unable  to  agree  with  the  conclusion  reached  by  Secretary 
Hitchcock  that  the  act  of  February  15,  1901,  does  not  confer  upon  the 
Secretary  of  the  Interior  technical  legal  authority  for  permitting 
the  use  of  the  Hetch  Hetchy  as  a  reservoir  site.  The  act  of  1901 
expressly  mentions  the  Yosemite  National  Park  as  one  of  the  reser- 
vations to  which  it  is  applicable,  and  in  express  language  the  Sec- 
retary of  the  Interior  is  authorized  and  empowered  to  permit  the 
use  of  rights  of  way  therein  "  for  water  plants,  dams,  and  reservoirs  " 
for  "  the  supplying  of  water  for  domestic,  public,  or  any  beneficial 
uses/'  I  can  not  find  in  the  act  of  1901  any  limitation  which  makes 
it  subject  by  a  process  of  construction  or  otherwise  to  the  general 
provisions  of  the  act  of  1890  with  respect  to  the  Yosemite  National 
"Park.  I  do  find  in  the  act  of  1901  the  provision  that  the  permits 
which  it  authorizes  the  Secretary  of  the  Interior  to  grant  shall  be 
issued  only  "  upon  a  finding  by  him  that  the  same  is  not  incom- 
patible with  the  public  interest " ;  and  in  view  of  the  language  of 
the  Yosemite  reservation  act  of  1890  I  believe  that  as  a  matter  of 
broad  public  policy,  and  not  at  all  as  a  matter  of  necessary  statutory 
Construction,  the  natural  condition  of  so  important  a  natural  curiosity 
or  wonder  as  the  Hetch  Hetchy  Valley  should  not  be  radically 
changed  without  the  express  authority  of  Congress  embodied  either 
in  a  statute  granting  a  permit  and  fixing  its  terms  and  conditions 
or  by  an  act  conferring  upon  the  Secretary  of  the  Interior  the  power 
to  issue  such  a  permit  upon  terms  and  conditions  to  be  fixed  by  him 
within  broad  general  limitations.  I  have  repeatedly  urged  that  the 
jjft  of  1901  should  be  amended  in  this  very  way. 

It  is  clear  and  it  is  conceded  by  the  applicants  for  this  permit 
that  it  should  not  be  granted  except  upon  terms  and  conditions  which 
the  city  of  San  Francisco  can  be  legally  and  effectively  compelled 
to  observe.  The  act  of  February  15,  1901,  does  not  in  words  author- 


8  WATER   SUPPLY,    CITY    OF    SAX    FRANCISCO. 

ize  the  Secretary  of  the  Interior  to  impose  "  terms  and  conditions  " 
upon  the  permits  issued  by  him,  and  it  is  vigorously  contended  by 
other  applicants  under  it  for  permits  throughout  the  public  domain 
that  the  act  is  not  susceptible  of  the  construction  that  it  does  author- 
ize the  Secretary  to  impose  terms  and  conditions  in  the  permits  for 
which  they  apply.  The  act  provides  that  the  permits  shall  be  issued 
"  under  general  regulations "  to  be  fixed  by  the  Secretary  of  the 
Interior,  and  it  expressly  provides  that  these  permits  "  may  be  re- 
voked by  him  or  his  successor,  in  his  discretion,  and  shall  not  be 
held  to  confer  any  right  or  easement  or  interest  in,  to,  or  over  any 
public  land,  reservation,  or  park."  General  regulations  have  been 
fixed  by  the  Secretary  which  contain  provisions  which  might  be 
held  to  impose  certain  general  terms  and  conditions  applicable  to 
all  permits  or  to  all  permits  of  a  particular  class  or  kind. 

I  have  repeatedly  pointed  out  as  vigorously  as  I  am  able  that 
this  statute  as  it  now  reads  is  unsound  in  principle  and  injurious  in. 
practice  with  respect  to  both  the  public  and  the  private  interest  af- 
fected.. It  is  most  unsatisfactory  as  a  basis  for  the  important  ad- 
ministrative actions  that  can  be  taken  only  under  it.  I  have  been 
willing  to  issue  permits  under  it  only  because  these  permits  are  by 
the  express  terms  of  the  statute  made  revocable  in  the  discretion  of 
the  Secretary.  Were  it  not  for  this  power  of  revocation  the  validity 
of  some  of  the  general  regulations  and  of  some  of  the  conditions 
imposed  in  or  under  them  might  be  contested  by  the  permittees.  The 
existence  of  the  power  of  revocation  makes  it  possible  to  ignore 
this  question  of  statutory  construction  in  the  case  of  permits  to 
individuals  or  private  corporations.  The  power  of  revocation, 
however,  is-  an  ineffectual  weapon  with  which  to  enforce  the  terms 
and  conditions  of  a  permit  issued  to  a  municipal  corporation  such 
as  the  city  of  San  JTrancisco.  If  that  city  and  its  adjacent  com- 
munities should  invest  the  money  of  the  tax  payer  in  creating  a 
municipal  water  supply  dependent  on  a  reservoir  in  the  Hetch  Hetchy 
Valley,  no  Secretary  of  the  Interior  would  or  should  revoke  the  per- 
mit in  order  to  enforce  terms  and  conditions  which  might  otherwise 
not  be  legally  binding  upon  the  city.  If  these  terms  and  conditions 
could  not  be  enforced  in  and  of  themselves  by  direct  action  under 
the  permit,  they  could  not  practicably  be  enforced  at  all.  I  believe 
that  certain  kinds  of  "terms  and  conditions  "  can  properly  be  pro- 
vided by  or  under  "  general  regulations  "  as  this  expression  is  used 
in  the  existing  statutes.  I  have  Keen  unable,  however,  to  see  how  the 
special  "  terms  and  conditions  "  which  clearly  should  be  attached  to 
any  permit  to  use  the  Hetch  Hetchy  could  be  included  within  any 
"general  regulations"  which  could  be  fixed  by  the  Secretary  under 
the  language  of  the  act  of  1001.  These  terms  and  conditions  aiv  in 


WATER   SUPPLY,    CITY   OF   SAN    FE  AN  CISCO.  9 

their  very  nature  special  and  peculiar  to  this  particular  permit .  as  a 
muling  of  the  report  of  the  Advisory  Board  will  clearly  show. 

The  foregoing  considerations  seem  to  me  controlling  upon  the 
pending  application  of  the  city.  I  therefore  continue  both  this  appli- 
cation and  the  rule  to  show  cause  until  application  can  be  made  by 
the  city  to  Congress  for  such  action  as  Congress  may  deem  proper  in 
the  premises.  I  prefer  not  to  express  any  conclusion  based  upon  the 
report  of  the  Advisory  Board  of  Army  Engineers  and  upon  my  own 
investigation  and  consideration  as  to  whether  Congress  should  or 
should  not  expressly  authorize  the  use  of  the  Hetch  Hetchy  Valley 
by  the  city  of  San  Francisco  and  its  adjacent  communities,  because 
I  have  decided  not  to  base  any  official  action  upon  such  a  conclusion 
now  and  because  if  I  were  now  properly  authorized  to. take  official  ac- 
tion I  would  prefer  to  secure  some  additional  information  and  to  give 
some  further  consideration  to  certain  features  of  the  matter  before 
taking  such  action.  Among  these  features  are  the  bases  and  conse- 
nt lences  of  the  conclusions  reached  by  the  Advisory  Board  that— 

ili.«  use  of  the  Hetcli  IletHiy  Valley  MS  a  reservoir  site  is  necessary  if  the  full 
flo\v  of  the  upi>er  Tuolunme  is  to  be  conserved 

and  that  — 

the  San  Joaquin  Valley  is  relatively  less  well  provided  with  water  than  the 
Sacramento  Valley  both  as  to  rainfall  and  as  to  run-off  of  rivers.  The  demands 
of  the  valley  for  complete,  irrigation  are  in  excess  of  the  water  available. 

Many  of  the  conditions  which  should  be  attached  to  any  permit  are 
discussed  in  the  report  of  the  Advisory  Board  of  Army  Engineers. 
I  do  not  agree  with  all  of  the  suggestions  there  made,  and  I  believe  that 
other  equally  important  terms  and  conditions  should  be  imposed. 

The  precise  manner  under  which  the  work  of  constructing  a  clam  at 
the  Hetch  Hetchy  Valley  would  be  carried  on  under  any  permit  is 
of  the  greatest  importance  if  serious  risk  of  injuring  the  scenic  beauty 
is  to  be  avoided.  I  believe  that  a  dam  and  a  scenic  road  and  other 
works  proposed  by  the  city  can  be  constructed  in  such  a  way  as  to 
mar  the  beauty  of  the  valley  little,  if  at  all",  and  even  in  some  respects 
to  enhance  the  possibilities  of  enjoying  this  beauty.  This,  however, 
can  result  only  from  conducting  the  work  with  the  greatest  skill  and 
without  regard  to  those  considerations  of  expense  which  quite  uni- 
formly control  work  of  this  character.  I  have  no  doubt  that  the  city 
would  carry  on  its  operations  with  a  considerable  degree  of  care,  but 
I  believe  that  extraordinary  measures  of  precaution  should  be  taken 
and  that  the  work  should  be  carried  on  not  merely  under  plans  and 
specifications  approved  by  the  Secretary  of  the  Interior,  but  that  the 
manner  in  which  the  work  itself  upon  the  ground  is  conducted  should 
be  subject  to  supervision  by  competent  representatives  selected  and 
employed  by  him. 


10  WATER   SUPPLY^  CITY   OF   SAN   FRANCISCO. 

The  questions  connected  with  the  use  of  water  by  the  Turlock- 
Modesto  district  and  other  irrigation  interests,  with  the  development 
and  disposition  of  the  water  power,  and  with  many  other  conflicting 
interests  are  so  difficult  and  complicated  that  suggestions  are  made 
either  by  the  city  or  by  the  Advisory  Board  that  they  be  left  largely 
to  future  disposition  by  the  Secretary  of  the  Interior.  The  func- 
tions thus  devolved  upon  the  Secretary  and  the  duties  imposed  upon 
him  will  require  the  occasional  or  regular  employment  of  experts, 
engineers,  and  other  assistants,  whose  compensation  should  not  be 
made  a  charge  upon  the  General  Government,  but  should  be  paid  by 
the  beneficiaries  of  any  permit  that  may  be  granted.  In  fact,  in  view 
of  the  conclusion  of  the  Advisory  Board  that  the  saving  to  the  city 
is  the  principal  determining  factor  as  to  any  permit,  the  whole  ques- 
tion of  the  payments  which  the  city  should  make  to  the  Government 
as  the  custodian  of  the  park  requires  more  consideration  than  has 
been  given  to  it. 

It  is  conceded  that  it  would  be  unsound  economics  for  the  city  of 
San  Francisco  to  duplicate  the  existing  distributing  system  and  that 
it  should  acquire  most  if  not  all  of  the  present  sources  of  supply  of 
the  Spring  Valley  Water  Compan}^;  and  the  Advisory  Board  base- 
its  report  on  this  theory.  It  is  the  declared  intention  of  the  city  to 
purchase  these  properties  as  the  beginning  of  its  proposed  municipal 
water  system  and  active  negotiations  have  been  carried  on  to  this 
end.  These  negotiations,  however,  have  thus  far  proved  unsuccess- 
ful. I- do  not  wish  any  action  of  mine  to  be  open  to  the  construction 
of  expressing  any  opinion  whatever  as  to  the  merits  of  the  contro- 
versy  between  the  city  and  the  company  as  to  the  value  of  the  latter's 
property,  nor  as  to  which  portions  of  the  property  it  would  be  ap- 
propriate for  the  city  to  acquire.  If  they  are  unable  to  agree,  both 
parties  should  be  compelled  to  submit  to  some  impartial  tribunal  the 
questions  at  issue  between  them,  so  that  the  company  may  receive 
that  to  which  it  is  fairly  entitled  and  the  city  may  not  be  required 
to  pay  one  dollar  more  than  the  real  value  of  the  property  it  should 
acquire. 

These  questions,  however,  are  merely  illustrations  of  the  large  nuin,- 
ber  of  important,  although  relatively  minor,  provisions  of  the  pro- 
posed permit  which  call  for  greater  consideration,  both  as  to  -sub- 
stance and  as  to  the  precise  manner  in  which  they  should  be  worded, 
than  I  have  been  able  to  give  to  them  under  the  existing  conditions  in 
the  Secretary's  office. 

Respectfully, 

WALTER  L.  FISHER,  Secretary. 

o 


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